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ISCR Case 12-03988.h1 — CASE

ISCR Case 12-03988.h1denied

Case Headnote

ISCR Case No. 12-03988.h1

deniedFeb 11, 2013· Hon. Marc E. Curry· hearing

Summary

A 42-year-old married fire protection engineer was denied a security clearance under Guideline H (Drug Involvement) due to a history of cocaine use. The Statement of Reasons alleged that the applicant abused cocaine approximately ten times between 1995 and 2010, with the most recent use occurring while he possessed a security clearance. Although the applicant did not purchase cocaine between 2005 and 2010, the disqualifying conditions of Guideline H, specifically AG ¶ 25(a) and AG ¶ 25(g), were raised.

The applicant demonstrated contrition and made efforts to disassociate from drug-using associates, which aligned with mitigating conditions AG ¶ 26(a) and AG ¶ 26(b). However, these factors were ultimately outweighed by the recency and nature of the drug use.

The denial was based on the fact that the applicant's last cocaine use occurred while holding a security clearance, and his history of abuse spanned several years, with incidents as recent as 2010. The judge concluded that the infrequent nature of the drug use did not mitigate the serious security concerns posed by its recency and the conduct itself.

Why the Applicant Was Denied

The applicant's last cocaine use occurred while holding a security clearance, raising significant security concerns.
The applicant's history of cocaine abuse spanned several years, with incidents occurring as recently as 2010.
The applicant's infrequent drug use was outweighed by its recency and the serious nature of the conduct.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedAny Drug Abuse
AG ¶ 25(g)appliedAny Illegal Drug Use After Being Granted a Security Clearance

Mitigating

AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future
AG ¶ 26(a)rejectedBehavior Happened so Long Ago, Was Infrequent, or Unlikely to RecurThe recency of the applicant's last drug use and the context of his drug use outweighed this mitigating condition.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedSep 12, 2012
Answer filedOct 3, 2012Applicant admitted all allegations except one.
Hearing heldJan 14, 2013Hearing conducted with evidence presented.
Decision dateFeb 11, 2013

Cite For

Recency of Drug Use While Holding a Security Clearance Under Guideline H
Weight of Mitigating Factors in Light of Serious Past Conduct
Whole-person Concept in Evaluating Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of cocaine use, noting that he abused cocaine approximately ten times between 1995 and 2010, with the last use occurring while holding a security clearance. Although the applicant expressed remorse and took steps to avoid future drug use, the recency and nature of his drug involvement were deemed too serious to mitigate the security concerns. The application for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Between approximately 1995 and 2010, Applicant abused cocaine approximately ten times.	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.b	During his most recent use, he possessed a security clearance.	Against Applicant	CocaineWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.c	Applicant abused cocaine approximately ten times.	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.d	Applicant did not purchase cocaine between 2005 and 2010.	For Applicant	Unspecified Drug Involvement	Not Applicable	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 12-03988 ) ) Applicant for Security Clearance )

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Although Applicant appeared contrite about his history of cocaine use, it is too soon to conclude that he has mitigated the security risk given the recency of his last use, which occurred while holding a security clearance, and the extensive span of time that he abused cocaine in the past. Clearance is denied.

Statement of the Case

On September 12, 2012, the Defense of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective as of December 1, 2006. DOD received Applicant’s answer on October 3, 2012, admitting all of the allegations except subparagraph 1.d, and requesting a hearing. On November 29, 2012, the case was assigned to me. On December 10, 2012, a notice of hearing was issued scheduling the case for January 14, 2013. At the hearing, I received into evidence two Government exhibits marked as Government Exhibits (GE) 1 and 2, and nine Applicant Exhibits, marked as Applicant Exhibits (AE) A through I. Also, I considered Applicant’s testimony. The transcript was received on January 23, 2013.

FINDINGS OF FACT

Applicant is a 42-year-old married man with two children, ages seven and five. He has been married for 12 years. He earned a bachelor’s degree in fire protection engineering in 1992, graduating with honors, and a master’s degree in engineering in 1994. (GE 1 at 10; Tr. 44) Since 1994, he has worked for the same company as a fire protection engineer. His duties include designing safer buildings and more efficient fire escapes. Currently, he is a senior project manager. (Tr. 21)

Applicant is highly respected on the job. According to his supervisor, he is one of the company’s most valuable senior engineers, “and has consistently demonstrated a high level of proficiency on the job and has always conducted himself in a professional manner.” (AE A)

Applicant has abused cocaine approximately ten times over the years. The majority of his cocaine use occurred before 2003. Most recently, he has used cocaine once in 2006 and once in 2010. (Tr. 25) The 2006 episode occurred on a weekend golf trip with friends. (Tr. 29) The 2010 episode occurred during a bachelor party. (Tr. 31) One of the people at the bachelor party was a coworker. When Applicant abused cocaine in 2010, he had a security clearance. (Tr. 37)

Applicant did not purchase the cocaine that he used in 2006 or 2010. He has not purchased cocaine in more than 15 years. (Tr. 31)

Applicant applied for a security clearance through another agency in the late 1990s. His application was denied. Applicant never received a rationale for the basis of the denial, but “assumed it was because of [his] admitted drug use.” (Tr. 41)

Applicant recognizes the foolishness of his cocaine use, and is “very ashamed and disappointed with [himself].” (Tr. 48) After a long talk with his wife after coming home from the bachelor party, he decided never to abuse cocaine again. (Tr. 49) He has stopped associating with his drug-abusing acquaintances, and “no longer places [himself] in situations where drugs are being used or might be used.” (AE I; Tr. 50) On December 7, 2012, he memorialized his intent never to abuse drugs again in a signed, sworn affidavit. (AE D)

On January 3, 2013, Applicant underwent a random drug test. The results were negative. (AE B, E)

POLICIES

The adjudicative guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied together with the factors listed in the adjudicative process. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a security clearance.

ANALYSIS

Guideline H, Drug Involvement

Under this guideline, “use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.” (AG ¶ 24) Applicant did not purchase cocaine between 2005 and 2010, as alleged in the SOR. I resolve SOR subparagraph 1.din his favor. Conversely, between approximately 1995 and 2010, Applicant abused cocaine approximately ten times. During his most recent use, he possessed a security clearance. AG ¶ 25(a), “any drug abuse,” and AG ¶ 25(g), “any illegal drug use after being granted a security clearance,” applies.

The following mitigating conditions under AG ¶ 26 are potentially applicable:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and

(b) a demonstrated intent not to abuse any drugs in the future, such as:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs are used; (3) an appropriate period of abstinence; and

(4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant only used illegal drugs twice during the past ten years. He has disassociated himself from his drug-using associates and contacts, changed his environment, and he executed a signed, sworn statement of intent to not abuse illegal drugs in the future.

Although Applicant’s cocaine use was infrequent, the last use occurred while he held a security clearance, less than three years ago. Also, Applicant continued to use cocaine through the 2000sdespite having been rejected for a security clearance in the late 1990s, for what he suspected was his admission of drug use. Under these circumstances, the infrequency of his use is outweighed by its nature, its seriousness, and its recency. Consequently, AG ¶ 26(b) applies, but not AG ¶ 26(a).

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Applicant is a stellar employee and is dedicated to volunteerism. Although these are impressive attributes, their probative value is limited because he was participating in these activities in part during the same period that he was periodically abusing cocaine. Upon considering this case in the context of the whole-person concept, I conclude that Applicant failed to mitigate the security concern.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a-1.c: Against Applicant

Subparagraph 1.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

MARC E. CURRY Administrative Judge